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Monday, 17 March 2014

Waiting for a space is not Parking. ParkingEye lose in court. Beware of snakes at Fistral Beach

3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014). Fistral Beach. The defendant spent 31 minutes waiting for a car park space during the crowded holiday season. The ANPR evidence was therefore not relevant as it showed the time in the car park, not the time parked. The judge ruled this was not against the terms and conditions of the signage. The judge also stated that in any case £100 was not likely to be a true pre-estimate of loss.
In an important case, the judge ruled that the 31 minutes the defendant spent driving round the crowded car park in Whit week did not classify as 'parking'. The ANPR evidence only showed the time of entry and exit to the car park, and not the true time parked. The signage only required payment for times parked, and therefore there was no contravention of the terms and conditions.

In any case, the judge thought he would probably be minded to rule that £100 was not a genuine pre-estimate of loss. However, this point did not need in-depth examination.

This occurred at Fistral Beach, which often experiences crowding, but this ruling is also relevant for motorists stuck in a queue trying to leave a car park, as often happens at Christmas, or when nearby sporting events are on.

ParkingEye lost the chance to suck money from this motorist, who was extremely nervous about going to court, when they failed to drop the price during mediation. The motorist would have settled for ParkingEye's known settlement figure of £50, but for some reason ParkingEye did not offer that figure on the day.

During mediation, the motorist started at £3.50 and ParkingEye at £171. ParkingEye dropped to £100 and the motorist went up to £15 but the mediator cut the session short at that time. The mediator was reported as not being that impartial. Neither mediator nor ParkingEye appeared interested in the legal issues involved, and were more excited about the number of letters had written and the number of signs in the car park. When the defendant mentioned the contract, ParkingEye made heavy reliance on clause 3.7.1.1, which was redacted on the defendant's copy and also the copy eventually sent to the judge.

ParkingEye sent two signage plans into court, both of which were incorrect. Several signs were placed outside in the car park, in the dunes. Signage warned holidaymakers against venturing into the dunes because of snakes. ParkingEye were indignant the the defendant was more worried about getting bitten by snakes than they were about finding the car park terms and conditions.

All credit must go to this motorist for sticking to her guns and going to court even though she did not want to.

Happy Parking

The Parking Prankster




39 comments:

  1. I do remember from previous reports that Fistral Beach was infested with cold blooded reptiles. I have now discovered that there are snakes there as well.

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  2. If parking only starts when a motorist's car stops in a parking space THEN ANPR cameras are useless since they do not record when the car arrives at or leaves the parking space.

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    1. I think you hit the nail on the head.

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    2. If on the other hand the alleged 'Parking Contract' starts when the vehicle is photographed - as the parking companies must think THEN only those terms and conditions known to the motorist at the time of the photograph apply. This begs the question as to why the parking companies put signs showing terms and conditions throughout the car park, as these can only be seen subsequent the photograph being taken and after the supposed contract has been formed.

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    3. I think you kind of said this already Snail, but if a motorist is queueing 31 minutes, in essence they are still driving and mobile. How the hell can they be aware of and agree to a contract on a sign that they have yet to see and be able to read? That is Absolute Liability, where the offender commits the crime by just being there (e.g. illegal alien), for which civil law does not permit. BPA guidelines on this are also useless as it quotes a grace period in which this case is irrelevant. The Landlord and their agents (PE) are liable for the delay by permitting the vehicle to enter their land whilst insufficient capacity of spaces is available. How can PE prove that the vehicle wasn't driving around?

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    4. The Judge was very keen on questioning "was there actually a contract." As it turns out, there wasn't.

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    5. The case seemed to focus on the fact that we were driving around for some time (31minutes) looking for a space. The PE reply to defence tried to discredit this by questioning our integrity. The legal system is after all, adversarial, but it does leave a bad taste in your mouth. . I guess the Judge made his own mind up about this, once he had, everything else fell into place. Fistral has a fairly generous "grace period" which, he remarked, suggested that there could well be a problem with overcrowding.

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    6. It just depends on what the terms and conditions the motorist has been able to see before the alleged contract is formed. i.e. the motorist may have seen a sign at the entrance to the car park. The question then arises as to how much of the terms and conditions on sign a motorist can absorb while driving. The Department for Transport ( The leading authority on signage for motorists in the UK) has guidelines on this as follows:

      No sign should have more than six words or destinations on any sign. This is because a motorist must be given four seconds to scan the sign twice, and six words gives a reading speed of 180 words per minute. Even at 5 mph, in four seconds of inattention, a car moves 9.8 yards. It follows therefore that even if a motorist sees a sign, showing the terms and conditions at the entrance to a car park, he/she will only register 6 words. However the motorist may not scan the sign sequentially i.e. not read it like a book, so what the motorist sees will amount to the terms and conditions when the contract is formed -unless the alleged contract is formed after the motorist has seen the terms and conditions shown in the car park.

      Another factor influencing the ability of the motorist to see the signage the visual acuity of the motorist. The minimum requirements wrt minimum visual acuity for a motorist is laid down by law. A motorist must be able to read a car number plate at 20 metres. The size of the lettering on a number plate is 79.4 mm. thus, one can calculate whether a sign could be read with this minimum requirement, by measuring the how close the motorist may approach the signage, while driving, and by taking into account the height of the letters on the sign. It would, of course, be highly discriminatory, on the part of the parking company, to require motorists using their car park to have a greater visual acuity than is required by the law of the land.

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    7. The entrance signs to Fistral are located on the right hand side of the (busy) entrance. The area has no footpath, and comes straight in from the highway. The area is littered with vehicles parked across bays, and surf paraphernalia. Nearby foreshore car parks have attendants and this sort of abuse doesn't happen.

      To view the entrance signs requires the driver to flex their head 45 degrees and rotate their head 90 degrees laterally. Not safe. Also, the signs at Fistral are multicoloured, random, and seem to say slightly different things, so are far from BPA compliant. Judge listened, but no spark ;-)

      Parking Eye will say that their signs are compliant with BPA regs, they are far from not. Go through the regs bit by bit, and you'll find more holes than in a second hand dart board.

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    8. Ironically ParkingEye's statement their signs are BPA compliant is a template statement which they use in every case. I have helped with many PE cases, and have yet to see a single one where their maps and pictures are accurate and the signage compliant. Perhaps they should change their template.

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    9. Hi Dude,

      The Dept. For transport says that if a sign is in an arc greater than 10 degrees from the driver's sight line - looking directly forward - it is counted as not visible to the driver.

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    10. BPA compliant doesn't make it English law. If they said it had to be the size of a postage stamp, doesn't mean that quoting BPA compliant makes it acceptable and fair. The BPA grace period would have been worthless in this scenario. It amazes me that PP are allowed to go to Court without having the correct evidence time and time again. How much longer will PPC be able to clog up the justice system with these vexterious claims?

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  3. Surely the radioactive spiders would kill the snakes, you have any spare Prankster?

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  4. It just shows what a flawed business model this whole ANPR camera set-up is. They cannot monitor people walking off site, they cannot monitor the misuse of certain bays and they cannot take into account when a motorist needs to park longer because they are disabled.

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    1. Sadly, a business model that on balance pays off to the tune of millions. It's about time the government and justice system stopped this type of milking of the motorist.

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    2. The monitoring of the bay's was a point I evidenced by providing photos of what actually goes on at Fistral....van's crossing bays, surfing paraphernalia left in bay's and aisles etc. Their reply to defence thanked me for pointing out the abuse the car park suffers, and pointed out the need for the car park management they provide. (I don't think they got the point.)

      My point to the Judge, was that a couple of camera's on poles, (without an attendant) actually made the situation worse. In the nearby foreshore car park at Peranporth, the very effective attendant would point out the errors of our ways.

      Incidentally, the Parking Eye / Fistral contract has a clause describing "accordance with local planning consent." I'm not sure that those camera's have planning consent, but I will find out ;-)

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  5. Just a quick word of thanks for peoples help and support through the process, especially Mr Prankster. Although Ms X didn't particularly wish to appear in court, her attitude quickly changed following the so called "mediation" process. It was a bit of a shambles, it became obvious pretty quickly, that no-one had actually read our defence, or indeed their own paperwork. ParkingEye denied that they had sent me a copy of the contract, even though the contract in front of me was marked "Exhibit 5." The lawyer in court denied it to, until the judge showed her the contract that he'd been sent by PE !

    Although she found the lead up to the day quite daunting, the actual day itself was fine, and the judge, and I must say, the PE representative were pleasant and helpful. The PE solicitor was almost apologetic for being there, her opening comments to us outside the court were, "I don't work for ParkingEye, I just represent them." She, did, of course, do her stuff in court.

    Although I'd read thoroughly the legal aspects of the case, thoroughly, I can't confess to being an expert. I felt that I was able to put the points across eloquently, and I was surprised that I wasn't challenged in more depth.There was some stuff where the judge quite clearly stated that I was wrong, despite presenting the contract (with clause 22), it became obvious that he'd decided that PE could persue a claim on Fistral's behalf. I did not have the technical expertise to argue with confidence (I'm sure others have), so I moved on. I was very confident with the gpeol stuff, as it made sense, and was able to back it up with statute. (The DofT guidance around POFA). He said early in the case that he did not want to use the case law presented, as, he quite rightly noted, it wasn't actually case law.

    I am keen to use aspects of the case to help others, particularly my fellow "dudes."

    I am relatively inexpert in the technical aspects of law (although it's been a steep learning curve!), and there are those more knowledgeable than me to take these aspects forward.

    There are, however some minor details from my case, that may be helpful to others.. I've got loads of photos which dispute the stuff ParkingEye sent out in their "replies to defence" that I would like to share, in particular the signage in the snake pit ! I will be taking this issue up with the relevant health and safety statutory body. There are also some minute details in the PE/Fistral contract that are worth note, there's some stuff around planning permission that may be quite pertinent and I am currently in dialogue with planning enforcement about this issue.

    There's also some stuff around the lease and the use of what appears to be an untaxed vehicle that Fistral use on the public beach that I will be following up.

    I guess my question to those in the know is this. Is it okay to use the stuff I've been sent by PE in the court papers, and indeed the evidence I've produced myself. know little of the legal process and rules around such issues, and am keen to keep within the boundaries of the law. Any advice/opinion gratefully received.

    On a final note, as the Judge was awarding costs, I'm sure I detected a slight smile as he asked me if we'd had to pay for parking, "please tell me you've got a ticket."

    The Parking Eye Lawyer disputed the fact that we had no proof of the 3 quid we were claiming, but the Judge allowed it-he noted that the proof was likely to be where it should be, displayed in the car, and, on this occasion he was not going to make me get the ticket.

    I've not had this much fun in ages :-)

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    1. An excellent report and thanks for posting it. It will give the average person the confidence to go up against these filthy weasels.

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    2. Were you able to claim costs? Funny that even the PE representative tried to distance themselves from the fiasco. They are guns for hire who get allocated the case.

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    3. The PE lawyer was very professional, and performed her best, I'm sure. As with any profession, there's obviously a bit of knowing nod's that those excluded from that profession "don't get."

      She did introduce herself before the hearing, and gave us some tips on procedure. She outlined the procedural aspects of the case, and what she was hoping to recover for her client. £100 plus court costs, plus solicitor fee's plus her "attendance costs" - this bit was a bit of a surprise. I'm not sure what an "attendance cost" was, but, as the hearing was scheduled for 4 hours, it did make me twitch slightly :-)

      We met in the interval, and it seemed that we both had common interests. We both had to serve people, as a course of duty.

      Personally, I would place working for ParkingEye on the same level as the tobacco industry, but I never got that point across. We had to go in for the judgement.

      After the Judge said "case dismissed" it went a bit quiet. Then he asked about costs. No cost on my behalf, (I was there for Justice!), asked for 3/4's of Ms X Wages, but as there was no actual loss, he refused. He was happy to award costs for travel, and of course......parking. Parking Eye asked for proof, (see above), classic.

      Out of interest, will Parking Eye have to pay for their lawyers 4 hours?

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    4. ParkingEye's lawyers are instructed to always ask for costs. However, they almost always get refused. The reason is that in the small claims court costs are limited and you cannot claim solicitor fees unless the other party act unreasonably. You can see from re-reading ParkingEye's filing, that a large part of their verbal diarrhea is to try and persuade the judge you acted unreasonably. As of course, you haven't most judges are smart enough not to fall for it.

      This leaves ParkingEye carrying the can. I phoned up LPC Law pretending to be a parking company and asked how much they charged. They said £200-£300 fixed fee for up to 3 hours. This has been borne out by actual amounts asked in case transcript, which is ironic because ParkingEye have accused me several times of making unsubstantiated allegations their costs are £200-£300. Thus, if they lose, they lose lots of money. Even if they win, ParkingEye still lose money!

      Its' a lose-lose situation!..

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    5. Interesting tactics, I went into the situation thinking that the max we would lose would be around £200. The bit about "attendance costs" did unnerve me and Ms X for a while, perhaps it was designed to ?

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    6. In reality, the maximum you would lose was £200 because you were not unreasonable. Despite her 'nice' manner, the comment from PE's hired gun was entirely designed to throw you off guard.

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    7. She didn't have a clue about Parking Law, I got challenged more from the Judge, than I did the Lawyer.

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  6. YES YOU CAN USE WHATEVER YOU HAVE [oops caps lock!!!]

    If they marked 'without prejudice' then it couldn't be used in your court case [by either them or you].

    Everything else [unless specifically indicated] can be shared with anyone.

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  7. The only snakes are the staff at ParkingEye. Glad they've been told to Hiss Off in this case

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  8. I did have an argument at a multi storey car park once when I'd pre-paid for an hour and got back to my car just within the hour but it took about 15 minutes to get down the levels and queue for the ticket machine. When I put my ticket in the machine, it said 'call operator' and the guy from the office came out and ask me to pay the extra for another hour. I refused and there was a long queue of cars behind me. He threatened to take my car registration if I didn't pay. I said he could take what he liked but I wasn't paying another 50p as it wasn't my fault I'd overstayed. In the end he let me go. I wonder if all the drivers behind me had to pay extra!

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  9. Brilliant - just about to go back to Parking Eye on a similar one ourselves. My pregnant partner had to drive around to find a space big enough to allow her to get in & out of the car, ANPR only shows entry & exit, not "parked" time in a FREE carpark. Should we use this case as evidence in our reply to Parking Eye prior to court paperwork?

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  10. I'm in a similar situation, but perhaps not so black and white? I did not park in the car park, but waited by the hotel entrance / exit (not in a parking space) to collect a relative who was visiting a family member at the hotel.

    Due to various circumstances, the waiting time was longer than I had anticipated, and so the period my vehicle was photographed entering and leaving the property was approx 40 minutes.

    Anyway, I did not read, nor have cause to study any parking signs, since that wasn't why I had driven my vehicle onto the property. Even if there had been a sign within view for me to study, I was in my car with the engine running (it was cold that day too!) waiting to collect my sister.

    Not sure about whether the precedent here applies? Does that behaviour constitute parking and am I liable? If I am, then what should I do?

    The other concern I have, is that the court named is in Northampton, which is almost 160 miles from the location in question. Can I really be expected to travel that far, to that court? Is that what the "Contest Jurisdiction" bit is about? Or am I barking up the wrong tree?

    As you can tell, I'm a total newbie to all of this! I just feel unhappy about this whole thing, and the fact that I have not successfully corresponded with Parking Eye prior to the court claim form, worry that will count against me and that my lack of follow-up to that correspondence is not a positive reflection on my case?

    It just feels very unfair.

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    1. This comment has been removed by the author.

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    2. Similar case here PDN, I pulled into the hotel at Stansted to use my phone, didnt take a space, didnt leave the car or switch the engine off, got a letter thru the post.
      I'm still deciding how to fight this - the letter mentions signage of 'stay' rather than 'park'.
      Interesting.

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  11. You can have the hearing moved to your local court.

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  12. While you can have the hearing moved to your local Court, you can also have the case moved to a Court of your choice, provided that you give a good reason. You may want to consider having the case transferred to a "friendly" Court (i.e. one which is known to have made decisions against PE in the past). That Court may be further away from your home, but it may give you a better chance of success. All this, however, will come later. You first task is to acknowledge service and draft a Defence. You chance to move the Court will follow once all those papers have been completed.

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  13. I thought about this aspect, after the event. It turned out our Judge was well versed on parking and contract law, and, although he remarked on the amount of documentation, (from both sides), he stated that he had seen much of it before.

    He did point out at the outset, that the people who supplied the "Witness Statement" for PE, (Mr Briant and Mr Langham), were not in court, and so could not be questioned, and he would take that into account when relying on them.

    It seemed that he had been involved in another case where the witness statement could not be relied upon because of this, my recollection gets a little wooly- I think I was doing okay on the Locus Standi bit, but actually shot myself in the foot when I produced the contract/agreement they had sent me. Interestingly, other decisions in other cases seemed to turn on this point.

    To those who have received one of these charges, it's certainly worth following the advice on here and pepipoo/Martins Money Saving web site. Parking Cowboys gives a nice little 2 page summary which seemed to sum things up nicely also.

    If I was doing this again, I wouldn't have let it get to the Court Stage, with hindsight, I would have got specific advice and followed it.

    Having said all that, I always used to stand up to the bully at school. You get the odd bloody nose, but it's worth it in the long run.

    Now, I've just recieved a letter from Parking Eye. It's causing me much worry, it confirms the details of the costs they owe me - I just don't know whether to put ut in a black or wooden effect frame :-)

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  14. I'm not sure if people are still citing this case, but I have been to court today, up against Parking Eye for a 10 minute overstay of free parking back in December 2014, 3 days before Christmas.

    I argued firstly that driving around was not parking and secondly if it was, that 10 minutes should come within the grace period specified by BPA at 13.4 of the guidelines(although now specified as 10 min at the time no limit was given by the BPA)

    It was found that firstly the contract does begin from arrival with the wording 'stay' meaning being on the land not parked, distinguished from paid for parking (and the Fistal Beach case) which begins from payment.

    Secondly that the BPA guidelines are not binding on the court and do not form part of the contract. Furthermore, even if the contract between the owners of the land and Parking Eye stipulates a grace period, this does not form part of the contract with the parking customer. In my case the 'grace period' had been redacted, but the judge said that does not matter as this is a separate contract to mine, which is solely based on signage.

    I have contacted the BPA who say that they cannot impose sanctions, as at the time of the overstay they did not specify a minimum time limit for grace period, although Parking Eye in essence have given no grace period or even indication of one.

    My next step is to contact the owner of the car park, as they have actually breached their contract by not allowing the grace period, although not sure if this will be beneficial unless they are trying to get out of the contract.

    But hope this helps people, unfortunately I'm now left with £185 to pay, but at least the judge said that I conducted myself well and he was sympathetic to me...

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    1. Sadly this just shows how random the small claims court can be. Last week, the judge dismissed a claim where the overstay was 14 minutes.

      The question is, how can a contact begin on arrival when at that point the motorist has not read the contract and so cannot agree to it. This would therefore be an unfair term in the consumer rights act 2015, and so not enforceable.

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